Rajasthan High Court
Archana Tiwari Daughter Of Shri Anjani ... vs University Of Rajasthan on 20 August, 2024
Author: Pankaj Bhandari
Bench: Pankaj Bhandari, Praveer Bhatnagar
[2024:RJ-JP:34282-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal (Writ) No. 1140/2022
in
S.B. Civil Writ Petition No.1977/2020
Archana Tiwari Daughter Of Shri Anjani Kumar Tiwari, Aged
About 39 Years, Resident Of Chuli Gate, Gangapur City, Sawai
Madhopur, Rajasthan.
----Appellant
Versus
University Of Rajasthan, Through Registrar J.L.N. Marg, Jaipur.
----Respondent
For Appellant(s) : Mr. Amit Singh Shekhawat, Adv.
For Respondent(s) : Mr. Rachit Sharma, Adv.
HON'BLE MR. JUSTICE PANKAJ BHANDARI
HON'BLE MR. JUSTICE PRAVEER BHATNAGAR
Judgment
Reserved on :: 02/08/2024
Pronounced on :: 20/08/2024
(Per Pankaj Bhandari, J)
1. Appellant has preferred this appeal aggrieved by Order
dated 24.02.2020 passed by learned Single judge, whereby the
writ petition filed by the appellant was dismissed.
2. Succinctly stated the facts of the case are that the
respondent-University vide advertisement dated 01.11.2012
invited applications from eligible candidates for the post of
Professors, Associate Professors and Assistant Professors in
various subjects. Appellant applied for the same and was kept
under the reserved list. Appellant and two other persons
thereafter, approached the High Court by filing a writ petition
stating therein that one of the person who was selected and who
was in the main list has not joined and, therefore, they should be
[2024:RJ-JP:34282-DB] (2 of 5) [SAW-1140/2022]
appointed against that vacancy. The said writ petition bearing
No.11768/2014 filed by the petitioner and Civil Writ Petition
No.403/2014 filed by Dr. Balraj Vishnoi were decided by the High
Court vide order dated 29.01.2016 and it was observed that out of
eight posts reserved for physically disabled candidates, seven
posts have already been filled, leaving only one post vacant, which
is due to non-joining by one of the candidate. The Court also
observed that the same should have been filled from amongst the
candidates of that category and, therefore, a direction was given
for appointment of one candidate against one post who is having
higher merit position.
3. The respondent-University vide order dated 18.06.2016
found the appellant to be highest in the merit under the Physical
Handicapped in the General Category and was appointed on the
post of Assistant Professor (History) on a probation period of 2
years. Appellant joined the service on 01.07.2016. Thereafter,
appellant preferred a writ petition claiming that respondent-
University may be directed to treat the initial date of appointment
of the appellant w.e.f. the last candidate appointed in the
Department of History and accordingly, this period till 01.07.2016
must be counted as her service period. It was also prayed that the
University be directed to allow notional benefits, pay fixation and
seniority of the appellant after treating her date of appointment
w.e.f. the date on which the last candidate was appointed in the
Department of History. Yet another prayer was made that the
appellant be paid minimum of the pay scale of post of Assistant
Professor during the period of probation.
[2024:RJ-JP:34282-DB] (3 of 5) [SAW-1140/2022]
4. The learned Single Judge in the above writ petition held
that the name of the appellant figured in the reserved list and on
account of non-joining of a candidate, her claim of appointment
became alive and in those circumstances, Court allowed the earlier
writ petition filed by the appellant on 29.01.2016. It was also
observed by the learned Single Judge that a candidate who is
appointed under the reserved list forms separate class and would
be thus entitled to service benefits from the date he/she joins.
Learned Single Judge, therefore, refused to interfere with the
order passed by the University of Rajasthan dated 28.09.2019 and
dismissed the writ petition, aggrieved by which, the present
appeal has been preferred.
5. It is contended by counsel for the appellant that if a
candidate does not join, then the person in the reserved category
should be given appointment from the date when the earlier
appointments were made. Counsel for the appellant has placed
reliance on State of Jammu & Kashmir and Ors. Vs. Satpal (2013)
11 SCC 737 and Judgment of the High Court in Alka Agrawal &
Ors. Vs. State of Rajasthan & Ors. S.B. Civil Writ Petition
No.13084/2011 decided by Rajasthan High Court on
17.03.2016.
6. Learned Counsel appearing for the respondent-
University has vehemently opposed the appeal. It is contended
that the date of initial appointment cannot be changed and all
service benefits accrue to a person from the date of his initial
appointment. It is also argued that date of appointment cannot be
changed to a date on which the appellant was not borne in
service. It is also contended that in the writ petition filed by the
[2024:RJ-JP:34282-DB] (4 of 5) [SAW-1140/2022]
appellant, wherein a direction was issued to consider the case of
the appellant along with two other persons and give appointment
to the most meritorious, however, there was no relief that the
appointment would relate back to the date when other persons
were appointed. It is thus, contended that the appellant does not
have any case.
7. We have considered the contentions.
8. Admittedly, in the present case, appellant's name is
appearing in the reserved list. The candidates from the main list
were recruited and since one of them did not join, the writ petition
filed by the appellant and other persons was allowed and
respondent-University was directed to fill up the vacancy from
amongst the most meritorious candidates. Consequently,
thereupon, the appellant was appointed as an Assistant Professor
in the Department of History.
9. From perusal of the order passed in the earlier Writ
Petition No.11768/2014 filed by the appellant, there is no direction
to give appointment from an earlier date, rather the direction was
only to fill up the vacancy from amongst the three petitioners who
were before the High Court i.e. Priti Singh, Archana Tiwari and Dr.
Balraj Vishnoi. The judgment cited by counsel for the appellant i.e.
State of Jammu & Kashmir (supra), was a case where the
Supreme Court directed that the order of appointment will relate
back to the permissible date contemplated under the Rules laying
down conditions of the service of the cadre to which the
respondent will be appointed, however, no such direction was
given in the Writ Petition No.11768/2014 filed by the appellant. It
is also appropriate to note that in The State of Bihar & Ors. Vs.
[2024:RJ-JP:34282-DB] (5 of 5) [SAW-1140/2022]
Arbind Jee: Civil Writ Appeal No.3767/2010 decided by the
Apex Court on 28.09.2021, wherein it was observed as under:-
"10. As earlier noted, the respondent entered service only on
10.2.1996 and yet under the impugned judgment, the High
Court directed counting of his seniority from 20.11.1985 when
he was not borne in service. The jurisprudence in the field of
service law would advise us that retrospective seniority cannot
be claimed from a date when an employee is not even borne in
service. It is also necessary to bear in mind that retrospective
seniority unless directed by court or expressly provided by the
applicable Rules, should not be allowed, as in so doing, others
who had earlier entered service, will be impacted."
10. Consequently, we are of the considered view that the
date of joining is the date from which the person is entitled to
have his service counted. It cannot be a date prior to the date of
his joining, more particularly, when the appellant was in a
separate category i.e. she was in a reserved list. It was not
necessary for the University to appoint the appellant, however,
since there was a direction of the High Court, the University
appointed the appellant. There was no direction of the High Court
to give her an earlier date of appointment and consequently,
University has not erred in denying the prayer of the appellant to
treat her appointment from an earlier date. Learned Single Judge
has not committed any error in dismissing the writ petition filed by
the petitioner.
11. In view of the above, we do not find any force in the
present appeal and the same is accordingly, dismissed.
12. Pending applications, if any, stand disposed.
(PRAVEER BHATNAGAR),J (PANKAJ BHANDARI),J
CHANDAN /
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